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Illinois Public Media

Supreme Court Strikes Down Key Provision Of Defense Of Marriage Act

June 26, 2013

The U.S. Supreme Court on Wednesday in a 5-4 ruling struck down a major part of the Defense of Marriage Act that denies federal benefits to same-sex couples.

The 1996 Defense of Marriage Act, or DOMA, was signed into law by President Bill Clinton, barring federal recognition of same-sex marriages for purposes such as Social Security survivors' benefits, insurance benefits, immigration and tax filing.

This decision means that legally married same-sex couples are now entitled to the same federal benefits as married opposite sex couples.

The majority opinion was written by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented.This decision means that legally married same-sex couples are now entitled to the same federal benefits as married opposite sex couples.

What the ruling means as a practical matter for Illinois couples is complicated.

Illinois does not allow same-sex marriage - though advocates pushing for a law say the federal ruling adds urgency to their cause. That is because of the approximately 1,100 federal benefits that are granted only to people who are married, and civil unions - which are legal in Illinois - do not count.

"The first question people might have is what is the status of persons in civil unions in Illinois with respect to the federal benefits of marriage," said Paul Linton, an attorney for the Thomas Moore society, which is a Catholic legal organization that opposes same-sex marriage. "In my judgment, the decision in the DOMA case does not affect them because they're not in a 'marriage' as recognized by state law."

The effect of the Supreme Court's decision is more complex when it comes to gay and lesbian couples who married in states like Iowa where it is legal, but who live in Illinois.

Christopher Clark is an attorney for Lambda Legal, a gay rights group. He said these couples will receive some of the federal benefits of marriage, but not others.

"It depends because different federal benefits and programs use different rules for determining who's married," Clark said, who urged people to consult an attorney if they have questions.

For some programs, whether a spouse gets a benefit is based on where a couple resides.

"So the federal government asks, as you married in the state in which you reside," Clark added. "And the answer for that would be 'no' for most people who were married elsewhere but now live in Illinois because Illinois is not recognizing their marriage as a marriage."

He said other benefits are determined using a so-called "rule of celebration" - where the wedding was held. So if a same-sex couple married in a place where that was legal, but then moved to Illinois, federal benefits will presumably kick in.

"I think we're going to need some clarification and probably the Obama administration and various federal agencies as to how they're going to interpret their practices going forward," Clark said.

Clark said given that President Barack Obama supports gay marriage, he is hopeful the administration will use a broad definition.

The court's decision on same-sex marriage paves the way for thousands of immigrants to be eligible for spousal green card.

An American citizen in a heterosexual relationship can sponsor his or her spouse for a visa, but that same right hasn’t been available to same-sex bi-national couples. That is until now.

Chicago immigration attorney Michael Jarecki said the court’s decision to strike down part of DOMA extends same-sex marriage benefits to immigrants who are not living in the U.S. legally.

“When we’re talking about couples, it could be 35,000 bi-national same-sex couples or greater, and when you think about it in terms of a civil rights issue, this is something we’re it’s going to right a wrong,” Jarecki said.

Jarecki said he believes all states – including those that do not allow same-sex marriage, like Illinois - will recognize their permanent residency if they marry a U.S. citizen.

He said the federal government needs to clarify which marriage benefits can be carried across state lines.

U.S. Homeland Security Secretary Janet Napolitano has pledged in a statement to ensure that all married couples are treated equally and fairly in the administration of immigration laws.

Bernard Cherkasov heads Equality Illinois, the state's oldest gay-rights organization. Cherkasov said the ruling adds urgency to their fight to legalize same-sex marriage in the state.

"Boy, it is bittersweet for us in Illinois," Cherkasov said. "And every day that goes by is another day where Illinois is a state of two classes of citizens. Those citizens who are able to get recognition, and those who can't. And it's up to Illinois lawmakers to remedy that on the first opportunity that they have."

Kevin Bowersox-Johnson of Urbana calls the Supreme Court’s decision a historic moment. He entered into a civil union in Champaign County a couple of years ago with his partner. They are one of about two-dozen same-sex couples in the state suing over Illinois’ same-sex marriage ban.

Bowersox-Johnson said the court’s ruling is a major step forward for equality.

“Every day that we move forward, one more step, it’s a day that we’re celebrating and worth remembering," he said. "I grew up here in this town, and as a young gay man never expected to see myself in a position where I could be in a civil union or a marriage, let alone recognized at the federal level.”

Bowersox-Johnson said he hopes to get married in Illinois later this year if the General Assembly approves a same-sex marriage bill, which Gov. Pat Quinn has pledged to sign.

"Members of the Illinois House now have more than 1,100 new reasons to make marriage equality the law in Illinois," said Gov. Quinn, in a statement issued shortly after the DOMA ruling. "Now is the time for all to put differences aside, band together and redouble our efforts to make it happen. I will continue working with members of the Illinois House and all of our tireless community advocates to bring marriage equality to Illinois as soon as possible."

The sponsor of the same-sex marriage bill is Rep. Greg Harris (D-Chicago), who has taken a lot of heat from gay rights activists for not calling the marriage bill for vote this spring.

"It's just important, now more than ever that we do the right thing, treat all of our families equally," Harris sad. "And then move on to be sure that people have decent jobs, decent education for their, decent health care, all the things that are important to all families."

The state Senate had passed it back in February. Still, Harris said he is non-committal about when he will try.

"I think right now folks are trying to digest the totality of hundreds of pages of this legal opinion," Harris said. "I think people are beginning to understand how vastly and how quickly our nation has evolved in our understanding of equal treatment under the law on this issue. So I think there's a lot to take in and then we'll make the right decision going forward."

Whenever he calls it for a vote - when the General Assembly's expected to be back in July, maybe later in the summer, or during the fall veto session - Harris said the Supreme Court ruling will only help his cause.

Illinois Attorney General Lisa Madigan, who may challenge Gov. Quinn in next year's Democratic Primary for governor, said the ruling is a victory for same-sex couples.

“In striking down DOMA, the Supreme Court has given added strength to our court fight to overturn Illinois’ ban on same sex marriage," Madigan said. "Today’s decision also intensifies the need to pass a marriage equality bill in our state and ensure that all Illinois couples have access to the full rights and benefits of civil marriage.”

Illinois State Sen. Bill Brady (R-Bloomington), who is running for governor, said if elected next year he will abide by the court’s wishes.

But Brady, who kicked off his campaign on Wednesday, said it is up to the sponsor of a bill in the Illinois House legalizing same-sex marriage to bring it to a vote.

Speaking in Chicago on Wednesday, Brady said the bill is ‘flawed." He added that portions of the measure would violate constitutional rights of religious organizations.

"Freedom of speech and exercise," Brady said. "The restriction of the use of their own faciltiies. And other things that I think will eventually be thrown own, but flaw the bill."

Brady is opposed to same-sex marriage, saying marriage is an institution between a man and a woman.